This blog is devoted to reporting and commenting on developments related to Crawford v. Washington, 541 U.S. 36 (2004). Crawford transformed the doctrine of the Confrontation Clause, but it left many open questions that are, and will continue to be, the subject of a great deal of litigation and academic commentary.

Wednesday, September 21, 2005

Hammon: papered and ready for Conference

I have previously posted my petition for certiorari in Hammon v. Indiana (lower court decision: State v. Hammon, 829 N.E.2d 444 (Ind. 2005)); you can find the petition by clicking here. The Public Defender Service for the District of Columbia and the National Association of Criminal Defense Lawyers have filed an amicus brief in support of the petition; you can find it by clicking here. The State has also filed a brief in opposition to the petition, which you can find by clicking here. And yesterday I filed a reply brief in support of the petition, which you can find by clicking here. So now we wait!

So what was the "nontestimonial" accusatory statement in Dutton that is being swept under the rug? Well, here are the facts.

Evans and Williams were charged with murdering 3 cops. They were tried separately. Evans went to trial first.

One of the prosecution witnesses at Evans' trial was a man named Shaw. Over a confrontation clause objection, Evans was permitted to testify as follows:

He and Williams (the charged, accomplice, declarant)were fellow prisoners. Williams was arraigned on the charges of murdering the officers. When Williams returned from the arraignment, Shaw asked him: "How did you make out in court?" Williams responded, "If it hadn't been for that dirty son-of-a-bitch Alex Evans, we wouldn't be in this now."

Once again, Crawford stated that this highly accusatory hearsay statement was "not testimonial."

Here is the $64,000 question: Why did the Court deem this statement nontestimonial? I submit that answering that question provides the "comprehensive" definition of "testimonial" that will come from Hammon, Davis and/or Ferguson, if the Court grants review in one or more of those cases.

First,in attempting to answer that question, it must be noted that the fact that the hearsay was "accusatory" and came from a charged accomplice did not render it "testimonial." Thus, the "accusatory" nature of the hearsay, the fact that the declarant had been charged with a crime and was in custody at the time the statement was made, and the fact that the declarant was the accused's accomplice in that crime, all appear to be irrelevant to a detertmination of whether the statement is "testimonial."

Prof. Friedman argues that whether or not a statement is "testimonial" depends exclusively upon "the expectation of a reasonable person in the declarant's position."

Well, under that formulation could a plausible argument be made that a reasonable person in Williams' position (i.e., an inmate charged with murder) might "expect" that a fellow prisoner (presumably charged with serious crimes) might act as a "snitch," by telling the authorities about Williams' accusation in exchange for leniency on his case? Snitches are common in a prison setting. All prisoners can tell you what a "snitch" is and what one will do to help himself.

Under Prof. Friedman's "objective" test, and its focus on the "expectation" of a "reasonable" declarant, it is evident that Williams' statement would (or, depending upon the predilictions of a particular judge, could) be deemed "testimonial."

This result flys in the face of Crawford's clear conclusion that such statement is "not testimonial." Prof. Friedman's "test" also is infected with the same degree of unpredictability that doomed Roberts.

Perhaps now we can better understand why Prof. Friedman (and indeed all of the authors of the briefs submitted on behalf of the defendants in Hammon, Davis and Ferguson) simply ignore the discussion of Dutton in Crawford!

As I have advocated, the test of whether a statement is "testimonial" depends upon three things, all of which must exist:

First, the statement must be obtained by an investigating governmental official or their agent;

Second, viewed objectively, the investigating governmental official's primary purpose must have been to produce evidence for use in a future prosecution (I submit that a workable rule for objectively determining the official's primary purpose would be utilizing the concept of "probable cause" as the dividing line. If the questioning (by the responding officer and/or the 911 dispatcher) occurs before "probable cause" to arrest exists, as a matter of law, it is not done for an evidence-producing purpose.); and

Third, a reasonable person in the declarant's position must have know that they were acting as a "witness against" someone when they made their statement.

Clearly, at least two of these elements were absent when charged accomplice Williams made his accusatory statement to Shaw, thus rendering his statement nontestimonial.

I'm, sure I could make a full career of responding to Paul Vinegrad on the subject of whether a statement there is a per se rule that only statements to governmental agents can be deemed testimonial, but I believe I have said so much already on the blog on this subject, in response to Paul and otherwise, that I will restrain myself. I also do not want to litigate Hammon through the blog. So I will limit myself to saying: (1) Hammon does not raise the issue of statements to private people, because the statement there was made to a police officer. I don’t think there was any reason to mention Dutton in my papers supporting Supreme Court review of Hammon. (2) Yes, there are snitches, just as there are undercover cops. I think statements to either stand on about the same footing with respect to whether they are testimonial. Most inmates and confederates are not snitches or undercover cops, and so statements to them acknowledging or reflecting culpability of the speaker, as well as implicating another – as was the case in Dutton and as is usually the case with respect to conspirator statements – are not made with the anticipation of evidentiary use. If the speaker did have this anticipation, in most circumstances the statement would not be made. This situation has nothing to do with that created by a complainant’s statement to a private social worker accusing another person of having committed a crime against her.

Friedman: "Most inmates and confederates are not snitches or undercover cops, and so statements to them acknowledging or reflecting culpability of the speaker, as well as implicating another – as was the case in Dutton and as is usually the case with respect to conspirator statements – are not made with the anticipation of evidentiary use."

What about the overarching implication from the Fourth Amendment line of cases, including Hoffa v. U.S., and Illinois v. Perkins, that everyone could be a snitch? "In Hoffa v. United States, 385 U.S. 293, 87 S.Ct. 408, 17 L.Ed.2d 374 (1966), '[t]he argument [was] that [the informant's] failure to disclose his role as a government informant vitiated the consent that the petitioner gave' for the agent's access to evidence of criminal wrongdoing, id., at 300, 87 S.Ct. 408. We rejected that argument, because 'the Fourth Amendment [does not protect] a wrongdoer's misplaced belief that a person to whom he voluntarily confides his wrongdoing will not reveal it.' Id. at 302, 87 S.Ct. 408." Ferguson v. City of Charleston, 532 U.S. 67, 94 (2001)(Scalia, J., dissenting). Couldn't the same notion of "trust no one" be said of the context here?

Vinegrad: "Prof. Friedman argues that whether or not a statement is "testimonial" depends exclusively upon "the expectation of a reasonable person in the declarant's position."

Well, under that formulation could a plausible argument be made that a reasonable person in Williams' position (i.e., an inmate charged with murder) might "expect" that a fellow prisoner (presumably charged with serious crimes) might act as a "snitch," by telling the authorities about Williams' accusation in exchange for leniency on his case? Snitches are common in a prison setting. All prisoners can tell you what a "snitch" is and what one will do to help himself."

I would argue this is already the case, as a matter of law, despite its origin in Fourth Amendment jurisprudence, as established by the Hoffa line of cases.

Just thought I'd throw a recent law school graduate's two cents into this argument. I took Crim Pro late in the game, so it's still somewhat fresh. Plus, I always enjoy brewing up amalgamated constitutional arguments. Why not add a pinch of Fourth Amendment to the Sixth Amendment analysis here, right?

The Fourth Amendment point is an interesting one, but I don't think it alters the situation much; if anything, it supports my view. These cases say that the Fourth Amendment doesn't protect the wrongdoer's mistaken view that the listener is not a snitch. Thus, the suggestion is that the wrongdoer-speaker presumably does not believe the listener is a snitch -- which, as I have argued, means that these statements are not testimonial. If the accused confesses to a snitch, not knowing he's a snitch, the Fourth Amendment doesn't protect him from use of the statement, and I'm saying that if a confederate of the accused confesses to a snitch, not knowing he's a snitch, the Sixth Amendment doesn't protect the accused from use of the statement. Sems perfectly compatible to me.

Friedman: "These cases say that the Fourth Amendment doesn't protect the wrongdoer's mistaken view that the listener is not a snitch. Thus, the suggestion is that the wrongdoer-speaker presumably does not believe the listener is a snitch -- which, as I have argued, means that these statements are not testimonial."

Doesn't this analysis blur the line between an objective test and a subjective test? Hoffa and its progeny rejected the declarant's subjective belief, or trust, that the "snitch" was not a "snitch." Instead, in the Fourth Amendment's rubric of "reasonable expectations," the Court held that such trust was an objectively unreasonable expectation. It does not matter whether the confederate of the accused knows or does not know he's confessing to a snitch, because under Hoffa, it is reasonably expected that everyone will turn out to be a snitch, or "witness against" the accused in Sixth Amendment terms. Therefore, at least as far as the Hoffa logic applies, the expectation of a reasonable person in the declarant's position could not be that the listener was not a snitch.

Hi Professor. This is the coolest damn blog I've ever read. I am a recent law school graduate and am working as an appellate defender. I have a Crawford issue coming up and can't wait to go through this blog with a fine-toothed comb.

Greetings from an Ohio Law Student!This past summer I had a Crawford issue for my Advanced Appellate Advocacy class, and I really enjoyed researching the issue. My professor for my current Evidence class pointed me to this blog after I kept discussing Crawford with him. I really like the idea of your blog and will attempt to read through it (in between reading from my casebooks).